Steven E. Brown, a Professional Law Corporation

There are many parts to a disability retirement application. However, the most important component of the disability retirement process is the medical documentation that accompanies your application. Simply attaching a complete copy of your medical file is usually not sufficient, as specific questions must be answered by your physician. There is a large body of case law on the subject and every situation is different. However, here are some questions that must be answered by the medical documentation you include with your application in order to be granted disability retirement by the Office of Personnel Management (OPM):

1. What is Wrong With You?

What is the medical condition that you suffer from? Usually, this will be found under the diagnosis or impression section of a medical report. While a general statement that you are suffering pain in a certain area, such as ‘back pain’ is acceptable, a specific diagnosis is better. The report should also include a thorough discussion of the symptoms that you have that result from the diagnosed condition, and a discussion by the doctor of which symptoms the doctor has observed during clinical testing.

2. How does your doctor know what is wrong with you?
It is not necessary to provide objective evidence (x-ray, MRI, EMG, etc.) showing that you have a medical condition – but you should if you can get it. In a relatively recent Federal Circuit Court of Appeals case, Vanieken-Ryals, the Court made it clear that the Retirement Act does not distinguish between subjective (patient complaints) and objective medical evidence. If a medical doctor gives a diagnosis based on subjective evidence, OPM would have to show that the doctor’s credentials are somehow in question. While the law says that you don’t need objective evidence, the reality is that you really should try to get objective evidence if you can.It makes this much easier on the overworked folks at OPM

The majority of applications we see that are rejected are due to a lack of objective evidence. When we explain the law to the OPM representatives regarding the lack of distinction between subjective and objective evidence, the application is usually accepted. However, save yourself the hassle and get objective evidence if possible. Now, some medical conditions do not readily lend themselves to objective verification, such as psychological conditions and pain disorders. In those situations, it is important for your doctor to note that he/she believes that your subjective reporting of symptoms is valid and that you are not a malingerer – basically, that you are not faking.

3. How does what is wrong with you impact your ability to do your job?
You do not have to be totally disabled to get disability retirement. You must, however, show that you cannot do the essential functions of your position due to your medical condition. To that end, your application should include a statement from your doctor explaining what specific tasks that your diagnosed condition prevents you from completing. For example, if you have a repetitive motion disorder such as carpal tunnel syndrome, your doctor might feel that you are unable to type. I recommend giving your doctor a copy of your job description and asking him to include a paragraph in his report identifying the specific tasks you are incapable of performing.

If you are completely disabled from all work, the doctor must explain how your diagnosis prevents you from doing any work at all. This seems obvious, but this information is rarely included by doctors without their having been specifically asked to include it in a medical report. Doctors will typically place you off of work without writing a detailed explanation of why they are doing so.
The law does allow OPM to ‘connect the dots’ if your doctor has provided extremely detailed work restrictions. In general, it is best not to rely on them to connect the dots; but if your doctor refuses to identify specific tasks you cannot perform, detailed work restrictions should suffice

4. Have you followed your doctor’s recommended treatment plan?
An application for disability retirement can be rejected if the applicant has refused reasonable treatment that would be expected to make the condition no longer disabling. OPM often cites the lack of medical evidence that an applicant has pursued treatment for a disabling medical condition as a reason for denying the application. For example, if your doctor tells you that your back pain would no longer be disabling if you lost 20 pounds, and you have made no effort to do so, your application will likely be rejected. In most cases, it is sufficient to show that you have complied with recommended treatment including medication and therapy. Your doctor should include a history of treatment, detailing treatments that you have undergone.
You do not have to have surgery, even if it is recommended, in order to get disability retirement. Treatments that are inherently risky, such as surgery, or that are against your religious beliefs do not have to be pursued to remain eligible for disability retirement.
In some circumstances, an applicant’s injury or disease might be new, but catastrophic. In that situation, there will be very little or no history of treatment. Make sure your doctor indicates that even with treatment you are not expected to recover sufficiently to return to work within one year.

5. Are you expected to recover within 1 year of filing your application?
You do not have to have a medical condition that disables you permanently. All you must show is that your condition prevents you from performing the essential functions of your position and is expected to continue to prevent you from doing so for at least one year. For example, a broken bone in your leg would not typically be expected to disable you for more than one year. However, a compound fracture of your leg requiring multiple surgeries might very well prevent you from returning to a position that requires standing and walking for more than a year.
Many doctors will hesitate to predict whether you will be able to return to full duty within a year. You must ask for a statement as to whether your doctor believes, in his/her medical opinion, that you *will* recover within one year. If he or she cannot say for sure that you will recover within that time then he or she should say “I’m not sure

There are always exceptions and every medical condition and situation is different. If you submit medical evidence that includes these elements, your chances of having success on your initial disability retirement application are greatly increased.

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The above article was prepared by Daniel M. Goodkin, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public.

This article will not constitute legal advice, nor form an attorney-client relationship. Any such relationship shall only commence upon execution of an express written agreement between the client and the attorney. If you need immediate legal advice, immediate legal representation or think you may be subject to any time deadline whatsoever, please immediately telephone us, or another licensed lawyer. We can be reached nationwide Toll Free at (800) USA-6927, or in the L.A. Area at (805) 496-9777 or (818) 706-1555.